Air District Reaches Settlement with EPA on Challenge to Dust Rules

The Imperial County Air Pollution Control District (Air District), together with the California Department of Parks and Recreation (Parks), have entered into a settlement agreement with the United States Environmental Protection Agency (EPA) that will resolve the Air District’s and Parks’ pending litigation in the United States Court of Appeals for the Ninth Circuit. The Air District and Parks had challenged EPA’s July 8, 2010 limited disapproval of the Air District’s Regulation VIII fugitive dust rules. The settlement creates a framework for the Air District and EPA to approve agreed upon revisions to the Regulation VIII rules, and to have the rules recognized as satisfying best available control measure (BACM) standards. The settlement is subject to public notice and comment in order to become final and effective.

The path forward provided by the settlement is intended to result in modified rules that will provide certainty for the regulated community, and meet EPA’s expectations for clarity and enforceability.

This settlement resolves disagreements between the agencies dating back several years. On September 3, 2010, the Air District filed a petition with the Ninth Circuit for review of EPA’s July 8, 2010 limited disapproval of the Air District’s Regulation VIII fugitive dust rules. The petition sought to vacate EPA’s disapproval of the rules, and reverse EPA’s rejection of the Air District’s demonstration that certain exceedances of ambient dust standards in the County in 2006 and 2007 were caused by natural high wind events. After hearing oral argument from the parties on February 15, 2012, the Ninth Circuit ordered the parties to mediation to determine if the matter could be resolved before the Court issued a decision on the petition.

The mediation took place before Ninth Circuit Judge Leavey, and involved multiple sessions over several months. The settlement sets out a path for EPA review and approval of a revised set of Regulation VIII dust control rules that the Air District will release for public review and comment in the next few weeks. Once formally adopted by the Air District, the rules will be forwarded to the California Air Resources Board (ARB) for approval, and then to EPA for final approval and incorporation into the California state implementation plan (SIP). Approval of the rules by EPA is necessary to avoid sanctions under the Clean Air Act, including potential loss of highway funds.

“We are pleased that the District and EPA were able to agree to a path forward that will recognize the Regulation VIII rules as best available control measures, or BACM,” said Air Pollution Control Officer Brad Poiriez. “The existing Regulation VIII rules were the result of exhaustive efforts from the public, stakeholders, the agricultural community, the District, ARB, EPA and a host of other agencies and community organizations to adopt some of the most protective dust controls anywhere in the country. We look forward to making the agreed upon modifications to these rules and, ultimately, adoption of the rules into our SIP, while recognizing the unique challenges in our air basin; particularly the impacts of the undeveloped desert land and high-wind dust emissions that are beyond our ability to control.”

Background on Regulation VIII

The Regulation VIII rules, adopted in 2005, impose stringent requirements designed to reduce the amount of fine particulate matter (PM-10) entrained in the ambient air as a result of emissions generated from anthropogenic, or man-made, fugitive dust sources within Imperial County. These sources include certain agricultural, construction, recreational off-highway vehicle and unpaved road sources.

The combination of an extremely dry climate, vast areas of undeveloped desert land, and occasional high winds in Imperial County led to a few instances in 2006 and 2007 when local monitors measured PM-10 levels above the national dust standard. The District notes that even with these natural challenges, 95% of the PM-10 measurements were below 2/3 of the national standard, and 70% were below 1/3 of the national standard. In addition, dust caused by uncontrollable natural events such as wildfires and high winds may qualify as “exceptional events,” and may be excluded by EPA from the calculations determining whether an air basin has attained national ambient air quality standards for PM-10.

The Regulation VIII rules were submitted for EPA approval into SIP on June 16, 2006. Subsequent Air District submittals to EPA documented the few days in 2006 and 2007 when exceedances were caused by natural events. In July 2010, EPA disapproved the Regulation VIII rules, based in part on its rejection of the Air District’s and ARB’s finding that the 2006 and 2007 exceedances were caused by uncontrollable natural high winds.

Through the settlement, the parties have agreed on revisions to Regulation VIII rules designed to meet or exceed BACM-level controls for significant anthropogenic, or human-caused, sources of emissions. “The final Regulation VIII rules will be among the most stringent dust controls anywhere, and take some of the toughest measures found in neighboring air districts in Arizona and California,” Poiriez said. “These measures reflect our ongoing effort to make sure that any significant human-caused dust sources do not prevent us from meeting our goal of attainment with the national ambient air quality standards.”

If any member of the public has any questions regarding the appeal, please call Mike Rood, County Counsel at 760.482.4400.